Today at the Supreme Court: Can Speech Constitute Terrorism?

This morning the Supreme Court will hear argument in a case that asks whether political speech - writing an op-ed for, or teaching nonviolent conflict resolution to a group on the government's blacklists - can constitute a crime of terrorism carrying a fifteen year prison sentence.

The law at issue is the "material support" statute. Created in 1996 and modified several times by Congress (including in the Patriot Act) after parts of it were struck down by earlier rounds of this lawsuit, the statute allows the State Department to create a blacklist of "foreign terrorist organizations" - defined very broadly to include groups that engage in violence against property that hurts U.S. economic interests. Once a group is on the blacklist, virtually any form of association with the group becomes a crime.

Once obscure, the law is becoming more familiar as it is invoked in almost every terrorism prosecution brought since 9/11. People hear the term "material support" and, because the word "material" connotes "tangible," assume it must mean things akin to weapons or money. But in fact the statute specifically says that various intangibles - "training," "expert advice or assistance," "personnel" or "services" - all are included within the ban.

Our plaintiffs are a variety of U.S.-based humanitarian activists. Humanitarian Law Project and its founder Ralph Fertig seek to work with members of one of the blacklisted groups, the Kurdistan Workers Party (PKK), teaching them how to monitor human rights abuses against the Kurds, bring human rights complaints to the UN, and encourage the PKK - which like many separatist groups has engaged in both peaceful advocacy and violence - to solve their disputes through nonviolent conflict resolution. The other plaintiffs are Tamil-American groups that sought to send humanitarian aid - money, relief supplies, and their own members (doctors, lawyers and engineers) - to do medical relief and help rebuild the parts of Sri Lanka devastated by the civil war between the government and a rebel group on the list, the Tamil Tigers (LTTE). Because the LTTE served as the functioning government in the area prior to 2009, any aid workers there would have to have dealt with the group in the course of carrying out their humanitarian missions. After the December 26, 2004 Indian Ocean Tsunami, those same LTTE controlled-parts of Sri Lanka already devastated by the civil war were further ravaged. Yet the prohibitions prevented Tamil-Americans from traveling there to help deal with one of the ten greatest natural disasters in recorded history.

The international aid community is hardest hit by the prohibitions on giving material goods - humanitarian relief of the sort flooding into Haiti on giant U.S. military aircraft as we speak. Those prohibitions are not currently at issue before Supreme Court, but Congress can and should address the problem by carving out broader exceptions permitting humanitarian relief in crisis areas.

What is at issue before the Supreme Court is the forms of speech our clients want to engage in - speech to, with, and on behalf of the banned groups. The government claims that everything our clients want to teach to the groups or advocate for with the groups is prohibited because it all fits within one of the terms in the statute - all of it can be seen as either providing "training," "expert advice," "personnel" (in the form of themselves) and/or "services." The lower courts have, six times, found that many of those terms are so open-ended that ordinary people cannot understand what is prohibited (the flip side of which is that prosecutors have too much discretion to decide what's prohibited).

As lower court decisions have gone against the government, it has conceded limits on how broadly these terms can be interpreted. For instance, "personnel" and "services," it now says, mean that "entirely independent" advocacy for a blacklisted group is OK, but advocacy "at the command" or "at the behest of" a blacklisted group is criminal. Obviously, there's a vast gap between the two extremes. If our clients decide to write an op-ed that says that a blacklisted group should in fact never have been placed on the blacklist in the first place, and consults with the groups' leaders about whether it's a good idea to publish it, or they accept some suggested edits, that's seemingly not "entirely independent" advocacy - but is it criminal? What about a journalist who wants to write a sympathetic article about a blacklisted group, goes to a conference overseas and meets with some of the leaders, and they disclose their political and media strategy, which fits with the sympathetic story the journalist wants to write? Where does that fall?

The Court can resolve many of these problems by holding, as we've urged, that Americans can't be held liable for speech made in coordination or association with a blacklisted group if the speaker doesn't intend to further the unlawful, violent ends of the group. That principle comes out of cases going back to the 1930s where state or federal courts tried to punish Communist Party or NAACP members for the violent activities of other members of the group. Despite the fact that the Communist party was said to engage in terrorism, had international links, and was sponsored by the Soviet Union - an existential threat to our government and our country - the Supreme Court said that members who didn't intend to further illegal activities of the party could not be prosecuted. Same for NAACP members who peacefully participated in or led boycotts of discriminatory businesses, even though some other members and leaders urged and used violence to enforce the boycotts. Applying that principle makes sense here, where the only speech at issue seeks to steer groups that have engaged in both lawful and violent activity towards nonviolence.

Amazingly, the Obama DOJ claims that such speech is nonetheless criminal, but the Supreme Court has never upheld a blanket criminalization of political speech that seeks to further only lawful, nonviolent activity. Often people think the government would never prosecute someone for such morally innocent speech - but in the immigration context, many innocent civilians forced at gunpoint to give drinking water or do laundry for blacklisted rebel groups have been denied asylum under the "material support" bar in immigration law. Whatever the Court decides, our work is cut out for us convincing our own government that prosecuting Americans who seek to carry out humanitarian aid and steer sometimes-violent groups away from violence doesn't make our world - or our country - any safer.

--February 23, 2010